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2020 DIGILAW 616 (JK)

Janak Raj Gupta v. Ashwani Kumar

2020-11-24

SANJAY DHAR

body2020
Judgment Sanjay Dhar, J.—Through the medium of instant petition, the petitioner has challenged order dated 02.03.2015 passed by the learned Municipal Mobile Judicial Magistrate 1st Class (Sub-Judge), Jammu (hereinafter referred to as the ‘trial Court’) in a complaint titled ‘Janak Raj Gupta vs. Ashwani Kumar and another’ whereby the evidence of the complainant, petitioner herein was closed and the complaint was fixed for arguments on framing of charge. Order dated 05.05.2015 passed by the said Court in the same complaint, whereby the statement of the accused under Section 342 of J&K Cr.P.C was directed to be recorded and order dated 20.05.2015 passed by the said Court, whereby a direction for production of defence evidence was issued, have also been called into question. 2. It is averred in the petition that the petitioner had filed a complaint for offences under Sections 420/406/34 RPC before the trial Court against the respondents/accused. It is further averred that the learned trial Court vide its order dated 28.08.2001, took cognizance of the aforesaid offences against the respondents/accused and issued process against them, but the said order was called into question by the respondents/accused before this Court by way of a petition under Section 561-ACr.P.C bearing No. 88/2002. Vide order dated 15.02.2006 passed in the said petition, this Court quashed the order of summoning the respondents/accused to the extent of taking of cognizance of offence under Section 406 RPC, but maintained the criminal proceedings against the respondents before the trial Court for offences under Sections 420/34 RPC. It is further averred that part statement of the complainant was recorded on 10.01.2014, but the respondents/accused sought adjournment to cross-examine the petitioner/complainant and his cross-examination was deferred. It is also averred that despite the respondents/accused having failed to cross-examine the petitioner/complainant on a number of dates, the learned trial Court vide its order dated 02.03.2015 proceeded to close the evidence of the petitioner/complainant. Apart from this, it is contended that the petitioner/complainant had furnished a list of witnesses and deposited the diet expenses of the witnesses before the trial Court, but without making any effort to summon the witnesses of the petitioner/complainant, the trial Court passed the impugned order of closure of evidence of the complainant. 3. The respondents despite service did not choose to contest the present petition. The trial Court record has been summoned and the same stands received. 4. 3. The respondents despite service did not choose to contest the present petition. The trial Court record has been summoned and the same stands received. 4. I have heard learned counsel for the petitioner and perused the grounds of challenge and the trial Court record. 5. A perusal of the trial Court record shows that upon receipt of the record by the trial Court, pursuant to the order dated 15.02.2006 passed by this Court in 561-A CrPC No. 88/2002, whereby criminal proceedings against the respondents/accused to the extent of taking of cognizance for offence under Section 406 RPC were quashed, the learned trial Court proceeded to issue process against the respondents/accused vide its order dated 21.09.2006. The minutes of proceedings reveal that on most of the dates of hearing, one or the other accused has remained absent before the trial Court. Ultimately, vide order dated 10.07.2012, respondent No.1/accused namely Ashwani Kumar was declared as absconder and general warrants of arrest were issued against him. Thereafter, the petitioner/complainant was directed to produce his witnesses. 6. It appears from the minutes of proceedings that the statement of the complainant could not be recorded for quite some time either due to absence of the accused or his counsel. It is further revealed from the record that on 10.01.2014, examination-in-chief of the complainant was recorded and his cross-examination was deferred at the request of the respondents/accused. The minutes of proceedings go on to show that thereafter the complainant has continued to appear before the trial Court on a number of dates of hearing, but, either on account of absence of the accused or his counsel and on some occasions, on account of non-availability of the Presiding Officer, the cross-examination of the complainant could not be recorded. Ultimately, on 29.12.2014, when the complainant as well as his counsel were present in the Court, the trial Court proceeded to record that no witness of the complainant is present and last and final opportunity was granted to him to produce his witnesses. Thereafter, vide the impugned order dated 02.03.2015, in spite of the presence of the complainant in the Court, the learned trial Court recorded that no witness of the complainant was present and proceeded to close the evidence of the complainant. 7. Thereafter, vide the impugned order dated 02.03.2015, in spite of the presence of the complainant in the Court, the learned trial Court recorded that no witness of the complainant was present and proceeded to close the evidence of the complainant. 7. From the aforesaid facts which have come on record, it is clear that the statement of the complainant was not recorded by the trial Court in full. It was obligatory for the trial Court to record the remaining statement of the complainant prior to recording the statements of other witnesses. The learned trial Court, without realizing this and in spite of the fact that the complainant was present before the Court on 29.12.2014 when the last and final opportunity for production of his witnesses was granted to him, proceeded to close the evidence of the complainant vide the impugned order dated 02.03.2015. 8. Once part statement of the complainant had been recorded and the complainant was present in the Court, it was not open to the trial Court to record that no witnesses of the complainant was present in the Court and proceed to close the evidence of the complainant. The order of closure of evidence recorded by the trial Court is, therefore, palpably illegal and cannot be justified in any circumstances. 9. Apart from the above, the trial Court record shows that on 02.05.2002, the complainant had deposited diet expenses in respect of as many as four witnesses before the trial Court. Once the diet expenses had been deposited before the trial Court, it was the duty of the said Court to issue summons to the witnesses of the complainant to secure their presence for recording their statements. 10. As per the provisions contained in Sub-section (2) of Section 252 of J&K Cr.P.C, a Magistrate is duty bound to summon the person(s) likely to be acquainted with the facts of the case after ascertaining the same from the complainant. In this case, the petitioner/complainant had not only furnished the list of witnesses, but had also deposited the diet expenses of the witnesses. The minutes of proceedings, however reveal that the trial Court has, at no point in time, issued summons to the witnesses of the complainant for securing their presence before it. On this count, the impugned order of closure of evidence of the complainant becomes unsustainable in law. 11. The minutes of proceedings, however reveal that the trial Court has, at no point in time, issued summons to the witnesses of the complainant for securing their presence before it. On this count, the impugned order of closure of evidence of the complainant becomes unsustainable in law. 11. For what has been discussed hereinbefore, the order dated 02.03.2015 passed by the trial Court whereby the evidence of the petitioner/complainant has been closed as also the orders dated 05.05.2015 & 20.05.2015 passed by it subsequent thereto are unsustainable under law. The same are, accordingly, set aside. 12. The learned trial Court is directed to record the cross-examination of the complainant and thereafter summon the witnesses, list whereof, has been furnished by the complainant. The complaint, it appears, has been filed way back in the year 2001, therefore, it is directed that the trial Court shall make every endeavor to decide the said complaint within a period of three months from today and in this regard, the complainant and the accused shall extend all possible cooperation to the learned trial Court. The petition stands allowed in the above terms. Copy of this judgment be sent to the trial Court for information and compliance.